What’s a Good Case?
Attorneys and others ask the ingredients for a successful AWA waiver. Is it that certain types of crimes have more leniency? A particular case profile? The petitioner? A set of documents or processing methods? Clients call worried and upset because there is no apparent connection between a criminal offense involving a child and proving no threat to an adult spouse or other family member. The couple is normally satisfied with the relationship; there is no history of domestic violence. The original offense did not include a violence. What’s the concern? I reviewed our approvals in some detail and am not coming up with a particular profile. Approvals are varied. Some crimes seem less severe than others, but we’ve gotten approvals on some more serious offenses as well. So, the seriousness of the offense is not necessarily a decisive factor. Here are some things to think about:
The USCIS Officer
View everything from the standpoint of a USCIS officer. They are instructed not to approve unless they are totally satisfied with the case. “[A]pproval recommendations should be rare…” (USCIS Neufeld Memo 2008 at p. 2). It’s not only the risk to the spouse, or other foreign beneficiary. You should assume that many or most USCIS officers don’t like these cases. Imagine that, for purposes of case preparation, they do not want a sex offender to live in the same neighborhood as them. This should be your mindset when preparing your case so that you appreciate the rigor it takes to try and obtain approval. There are concerns about harmful behavior toward children; forgiveness is very difficult to come by.
Why would an innocent spouse want to marry a convict? Is the foreign spouse in it for the green card? Does the female need protection? Is she willing to live under threat in the home in order to get the green card? The new victim can be saved by returning her to her home country unharmed.
Why not divorce? More than half the marriages in the U.S. end up in divorce. Why save this one? Split up and make things easy for the adjudicating officer. Why are you worth saving?
Psychological evaluations are helpful, but a bit of quackery. “Experts” are thought to be hired guns to help you out. The USCIS officer makes the final determination, so why give much attention to a psychological evaluation, or a lie detector test for that matter? The USCIS officer may look carefully for any weaknesses in the evaluation and seize upon them to deny. All these problems need to be worked out to have a chance at being successful in an Adam Walsh Act no risk determination. You need to hope that the USCIS officer who is reviewing your case is not simply towing the line, but is willing to listen and consider thoughtfully. You hope the officer has some life experience, so as to suspend popular disbelief, and hear you. The vast majority of sex offenders do not repeat offenses, and there is no apparent connection between an illegal act toward a child years ago and an offense to an adult today. There are many studies in the field of psychology, so stereotypes and popular beliefs are largely unsupported. The data suggests that the majority of these cases should be approved.
Think Deeply and Proceed with Caution
It’s a lot of work to try and prompt an immigration officer to listen to you and think about what is the right thing to do. Any missteps and you lose your audience. The case is dumped. Don’t argue. Instead, try to be convincing and respectful. I call it getting to zero. You are starting way back in the pack, and you have to find ways to get attention, so that an immigration officer can see this is a case worthy of his or her consideration and the officer is confident in the approval, despite all bias. An Adam Walsh Act waiver is not impossible. It’s just a tough slog.